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Relations with Great Britain.

He expressed dissatisfaction also at the section which requires certain compliances, on the part of British ships of war entering our harbors, with arrangements to be prescribed by the collectors. He did not deny the right of the nation to make what rules it might please in such cases, but apprehended that some of them were such as the commanders might deem incompatible with their just pretensions, especially when subjecting them to the discretion of so subaltern an authority as that of the collectors, and, consequently, that the law would have the unfriendly effect of excluding British ships of war altogether from American ports. He was reminded, in reply, that the collectors were, according to the terms of the section,

In communicating these circumstances, it will occur to you, whilst they may be allowed to proclaim the growing sensibility of the United States on the subject of impressments, they ought, by proper explanations and assurances, to be guarded against a misconstruction into marks of illiberal or hostile sentiments towards Great Britain. The truth is, and it may be so stated by you, that this practice of impressments, aggravated by so many provoking incidents, has been so long continued, and so often in vain remonstrated against, that, without more encouragement than yet appears, to expect speedy redress from the British Government, the United States are, in a manner, driven to the necessity of seeking for some remedy dependent on themselves alone. But it is no less true that to be guided in the exercise of their power by the they are warmly disposed to cherish all the friend-directions of the President; and it was not only ly relations subsisting with Great Britain; that to be presumed, but he might be particularly asthey wish to see that necessity banished by just sured, that the directions given would be consistand prudent arrangements between the two Gov-ent with the usages due to public ships, and with ernments; and that, with this view, you were in- the respect entertained for nations in amity with structed to open the negotiations which are now the United States. He asked whether, in transdepending. It is impossible for the British Gov-mitting the act to his Government, as his duty ernment to doubt the sincerity of these sentiments. would require, he might add the explanation and The forbearance of the United States, year after assurances he had heard from me. I answered year, and war after war, to avail themselves of that, without having received any particular authose obvious means, which, without violating thority for that purpose from the President, I could their national obligations of any sort, would ap- safely undertake what I had stated was conformpeal in the strongest manner to the interest of able to his sentiments. Great Britain, is of itself a sufficient demonstration of the amicable spirit which has directed their public councils. This spirit is sufficiently manifested also by the propositions which have been lately made through you, and by the patience and cordiality with which you have conducted the negotiation. I might add, as a further proof to the same effect, that, notwithstanding the refusal, of which we have official information, from Glasgow and Liverpool particularly, to restore American seamen deserting their ships in British ports, the laws of many of the States have been left, without interruption, to restore British deserters. One of the States (Virginia) has, even at the last session of its Legislature, passed an act for the express purpose of restoring such deserters, which deserves the more attention as it was done in the midst of irritations resulting from the mul-nances of Great Britain and France themselves, tiplied irregularities committed by British ships and is consequently free from objections by either. in the American seas. The interposition of the Government, though claimed in behalf both of Great Britain and of France, was most pressed in behalf of the latter. Yet the measure, particularly as it relates to the shipment of contraband articles for the West Indies, is likely to operate much more conveniently for Great Britain than for France, who cannot, like Great Britain, otherwise insure a supply of these articles for the defence of their colonies.

Enclosed is another act of Congress, restraining and regulating the arming of private vessels by American citizens. This act was occasioned by the abuse made of such armaments in foreing a trade, even in contraband of war, with the Island of St. Domingo, and by the representations made on the subject of that trade by the French Chargé des Affaires and Minister here, and by the British Minister, with respect to abuses which had resulted, or might result, from such armaments, in cases injurious to Great Britain. A report of these representations, as made to the President, is herewith enclosed. The act, in substituting a security against the unlawful use of the armaments in place of an absolute prohibition of them, is not only consistent with the obligations of a neutral nation, but conformable to the laws and ordi

Mr. Merry has expressed some inquietude with respect to the clause in the act above referred to which animadverts on British trespasses on board American vessels, and his language, on several late occasions, has strongly opposed the expectation that Great Britain will ever relinquish her practice of taking her own subjects out of neutral vessels. I did not conceal from him my opinion that the terms "trespass," &c., would be applicable to the impressment of British subjects as well as others, or that the United States would never accede to that practice. I observed to him. that every preceding Administration had maintained the same doctrine with the present on that point, and, such were the ideas and feelings of the nation on it, that no Administration would dare so far to surrender the rights of the American flag.

In the project which you have offered to the British Government, I observe you have subjoined a clause for securing respect to certificates of citizenship. The effect of this clause, taken as it ought to be, and as was doubtless intended, in con

See act of Parliament, 35 George III, ch. 22, sections 37, 38; and Valin's Commentaries liv. 1, tit. 10, art. 1.

Relations with Great Britain.

text with the preceding clause, is limited to the case provided for in that clause. Still it may be well, in order to guard against the possibility of its being turned into a pretext for requiring such certificates in other cases, that a proviso for the purpose be added, or that words of equivalent restriction be inserted.

With the aid of these communications and remarks you will be at no loss for the views of the subject most proper to be presented to the British Government, in order to promote the object of the resolutions; and the resolutions themselves ought powerfully to second your efforts, if the British Government feels the same desire, as actuates the United States, to confirm the friendship and confidence on both sides, by a greater conformity on that side to the spirit of the commercial regulations on this.

I have referred above to the enclosed copy of the motion made by Mr. Crowninshield, in the House of Representatives. The part of it which has relation to the trade with the West Indies was suggested, as appears in his introductory observations, by the late proclamations of the Brit

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Another subject requiring your attention is pointed at by the resolutions of the Senate, moved by General Smith, on the subject of a British tax on exports, under the name of a convoy duty. A copy of the resolution is enclosed. A duty under that name was first laid in the year 1798; it then amounted to half of one per cent. on exports to Europe, and one per cent. on exports to other places, and consequently to the United States. The discrimination, being evidently contrary to the treaty then in force, became a subject of dis-ish West India Governors, excluding from that cussion between Mr. King and the British minis- trade vessels of the United States, and certain try. His letters to the Secretary of State and to articles of our exportations, particularly fish, even Lord Grenville explain the objections urged by in British vessels. These regulations are to be him, and the pretexts in support of the measure ascribed partly to the attachment of the present alleged by them. The subject was resumed in my administration in Great Britain to the colonial letter of the 5th of March, 1804, to Mr. King, with and navigation system; partly to the interested a copy of which you have been already furnished. representations of certain merchants and others It was received by Mr. Gore, during the absence residing in the British provinces on the contiof Mr. King on the continent; and if any occa- ent. Without entering at large into the policy sion was found proper by either for repeating the on which the colonial restrictions are founded, it remonstrance against the duty, it appears to have may be observed that no crisis could be more inbeen without effect. Whilst the treaty was in eligible for enforcing them than the present, beforce, the discrimination was unquestionably a cause at none more than the present have the violation of its faith. When the war ceased, it West Indies been absolutely dependent on the lost the pretext that it was the price of the con- United States for the supplies essential to their voy, which, giving a longer protection to the existence. It is evident, in fact, that the United American than to the European trade, justified States, by asserting the principle of a reasonable higher price for the former than for the latter. reciprocity, such as is admitted in the trade with Even during war the exports are generally made the European ports of Great Britain, and as is adas American property, and in American vessels; mitted even in the colonial trade of other Euroand therefore, with a few exceptions only, a con- pean nations, so far at least as respects the vessels voy, which would subject them to condemnation, employed in the trade, might reduce the British from which they would otherwise be free, would Government at once to the dilemma of relaxing not be a benefit, but an injury. Since the expira- her regulations, or of sacrificing her colonies; tion of the treaty, the discrimination, as well as and with respect to the interdict of supplies from the duty itself, can be combated by no other ar- the United States of articles necessary to the guments than those which, in the document refer- subsistence and prosperity of the West Indies, in red to, are drawn from justice, friendship, and order to force the growth and prosperity of the sound policy; including the tendency of the mea- continental provinces of Nova Scotia, &c., what sure to produce a discontinuance of the liberal can be more unjust than thus to impoverish one but unavailing example given to Great Britain part of the foreign dominions, which is considby the regulations of commerce on our side, and ered as a source of wealth and power to the a recurrence to such counteracting measures as parent country, not with a view to favor the are probably contemplated by the mover of the parent country, but to favor another part of its resolutions of the Senate. All these arguments foreign dominions, which is rather expensive than gain strength, in proportion to the augmentations profitable to it? What can be more preposterous which the evil has lately received; it being now than thus, at the expense of islands which not stated that the duty amounts to four per cent. on only contribute to the revenue, commerce, and the exports to the United States. These, accord- navigation of the parent State, but can be secured ing to Cox's answer to Sheffield, amounted, in the in their dependence by that naval ascendancy year 1801, to about seven and a half millions ster- which they aid, to foster unproductive establishling, and therefore levy a tax on the United States ments? of about one million three hundred thousand dol- Considerations, such as these, ought to have lars. From this is, indeed, to be deducted a sum weight with the British Government, and may proportioned to the amount of re-exportation from very properly enter into frank conversations with the United States; but, on the other hand, is to its ministry on favorable occasions. However be added the increase of the exports since the year repugnant that Government may be to a depar1801, which probably exceed the re-exportations. I ture from its system, in the extent contemplated

Relations with Great Britain.

by Mr. Crowninshield's motion, it may at least
be expected that the trade, as opened in former
wars, will not be refused under circumstances
which, in the present, particularly demand it. It
may be hoped that the way will be prepared for
some permanent arrangement on this subject be-
tween the two nations, which will be conforma-
ble to equity, to reciprocity, and to their mutual
advantage. I have the honor to be, &c.,
JAMES MADISON.

First. That the principle is of modern date; that it is maintained, as is believed, by no other nation but Great Britain, and that it was assumed by her under the auspices of a maritime ascen

dency, which rendered such a principle subservient to her particular interest. The history of her regulations on this subject shows that they have been constantly modified under the influence of that consideration. The course of these modifications will be seen in an appendix to the fourth volume of Robinson's Admiralty Reports.

Secondly. That the principle is manifestly contrary to the general interest of commercial nations, as well as to the laws of nations, settled by the most approved authorities, which recognises no restraints on the trade of nations not at war, with nations at war, other than it shall be impartial between the latter; that it shall not extend to certain military articles, nor to the transportation of persons in military service, nor to places actually blockaded or besieged.

Mr. Madison to Mr. Monroe.

DEPARTMENT OF STATE, April 12, 1805. SIR: The papers herewith enclosed explain particularly the case of the brig Aurora.

The sum of the case is, that while Spain was at war with Great Britain, this vessel, owned by Thirdly. That the principle is the more cona citizen of the United States, brought a cargo of trary to reason and to right, inasmuch as the adSpanish produce, purchased at the Havana, from mission of neutrals into a colonial trade shut that place to Charleston, where the cargo was against them in times of peace, may, and often landed, except an insignificant portion of it, and does, result from considerations which open to the duties paid, or secured, according to law, in neutrals direct channels of trade with the parent like manner as they are required to be paid, or State, shut to them in times of peace, the legality secured, on a like cargo, from whatever port, of which latter relaxation is not known to have meant for home consumption; that the cargo re- been contested; and inasmuch as a commerce mained on land about three weeks, when it was may be, and frequently is, opened in time of war, reshipped for Barcelona, in Old Spain, and the between a colony and other countries, from conduties drawn back, with a deduction of three and siderations which are not incident to the war, a half per cent., as is permitted to imported arti- and which would produce the same effect in time cles in all cases, at any time within one year, of peace; such, for example, as a failure or dimunder certain regulations, which were pursued in inution of the ordinary sources of necessary supthis case; that the vessel was taken on her voy-plies, or new turns in the course of profitable age by a British cruiser, and sent for trial to Newfoundland, where the cargo was condemned by the Court of Vice-Admiralty; and that the cause was carried thence, by appeal, to Great Britain, where it was apprehended that the sentence below could not be reversed.

interchanges.

Fourthly. That it is not only contrary to the principles and practice of other nations, but to the practice of Great Britain herself. It is well known to be her invariable practice in time of war, by relaxations in her navigation laws, to admit neutrals to trade in channels forbidden to them in times of peace, and particularly to open her colonial trade, both to neutral vessels and supplies, to which it is shut in times of peace; and that one at least of her objects in these relaxations, is to give to her trade an immunity from capture, to which, in her own hands, it would be subjected by the war.

The ground of this sentence was, and that of its confirmation, if such be the result, must be, that the trade in which the vessel was engaged was unlawful; and this unlawfulness must rest, first, on the general principle assumed by Great Britain, that a trade from a colony to its parent country, being a trade not permitted to other nations in time of peace, cannot be made lawful to them in time of war; secondly, on the allegation Fifthly. The practice which has prevailed in that the continuity of the voyage from the Ha- the British dominions, sanctioned by orders of vana to Barcelona was not broken by landing the Council and an act of Parliament, (39 Geo. III. cargo in the United States, paying the duties c. 98,) authorizing for British subjects a direct thereon, and thus fulfilling the legal pre-requi- trade with the enemy, still further diminishes the sites to a home consumption; and, therefore, that force of her pretensions for depriving us of the the cargo was subject to condemnation, even un-colonial trade. Thus we see in Robinson's Adder the British regulation of January, 1788, which miralty Reports, passim, that during the last war so far relaxes the general principle as to allow a a licensed commercial intercourse prevailed bedirect trade between a belligerent colony and a tween Great Britain and her enemies, France, neutral country carrying on such a trade. Spain, and Holland, because it comprehended articles necessary for her manufactures and agriculture, notwithstanding the effect it had in opening a vent to the surplus productions of the others. In this manner she assumes to suspend the war itself, as to particular objects of trade beneficial to herself, whilst she denies the right of the other belligerents to suspend their accustomed commercial restrictions in favor of neutrals. But

With respect to the general principle which disallows to neutral nations, in time of war, a trade not allowed to them in time of peace, it may be observed:

Relations with Great Britain.

corporated and naturalized, as a part of the commercial stock of the country re-exporting it.

the injustice and inconsistency of her attempt to press a strict rule on neutrals, is more forcibly displayed by the nature of the trade which is The question then to be decided under the openly carried on between the colonies of Great British regulation itself is, whether in landing Britain and Spain, in the West Indies. The the cargo, paying the duties, and thus as effectumode of it is detailed in the enclosed copy of a ally qualifying the articles for the legal consumpletter from wherein it will be seen that tion of the country as if they had been its native American vessels and cargoes, after being con- productions, they were not, at the same time, demned in British courts, under pretence of illi-equally qualified with native productions for excit commerce, are sent on British account to the portation to a foreign market. That such ought enemies of Great Britain, if not to the very port to be the decision results irresistibly from the folof the destination interrupted when they were lowing considerations: American property. What respect can be claimed from others to a doctrine, not only of so recent an origin, and enforced with so little uniformity, but which is so conspicuously disregarded in practice by the nation itself, which stands alone in contending for it?

1. From the respect which is due to the internal regulations of every country, where they cannot be charged with a temporizing partiality towards particular belligerent parties, or with fraudulent views towards all of them. The regulations of the United States on this subject must be free from every possible imputation, being not only fair in their appearance, but just in their principles, and having continued the same during the periods of war as they were in those of peace. It may be added, that they probably correspond, in every essential feature relating to re-exportations, with the laws of other commercial countries, and particularly with those of Great Britain. The annexed outline of them, by the Secretary of the Treasury will at once explain their character, and show that, in the case of the Aurora, every legal requisite was duly complied with.

2. From the impossibility of substituting any other admissible criterion than that of landing the articles, and otherwise qualifying them for the use of the country. If this regular and customary proceeding be not a barrier against further inquiries, where, it may be asked, are the inquiries to stop? By what evidence are particular articles to be identified on the high seas or before a foreign tribunal? If identified, how is it to be ascertained whether they were imported with a view to the market at home or to a foreign market, or, as ought always to be presumed, to the one or the other, as it should happen to invite? Or, if to a foreign market, whether to one forbidden or permitted by the British regulations? For it is to be recollected, that among the modifications which her policy has given to the general principle asserted by her, a direct trade is permitted to a neutral carrier from a belligerent colony to her ports, as well as to those of his own

courts.

But, apart from this general view of the sub-country. If, again, the landing of the goods, and ject, a refusal to indemnify the sufferers, in the the payment of the duties, be not sufficient to particular case of the Aurora, is destitute of every break the continuity of the voyage, what, it may pretext; because, in the second place, the contin- be asked, is the degree of internal change or alienuity of her voyage was clearly and palpably broken, ation which shall have that effect? May not a and the trade converted into a new character. claim be set up to trace the articles from hand to hand, from` ship to ship, in the same port, and even from one port to another port, as long as they remain in the country? In a word, in departing from the simple criterion provided by the country itself for its own legitimate and permanent objects, it is obvious that, besides the defalcations which might be committed on our carrying trade, pretexts will be given to cruisers for endless vexations on our commerce at large, and that a latitude and delays will accrue in the dis

Sixthly. It is particularly worthy of attention, that the Board of Commissioners, jointly constituted by the British and American Governments, under the seventh article of the treaty of 1794, by reversing condemnations of the British courts. founded on the British instructions of November, 1793, condemned the principle, that a trade forbidden to neutrals in time of peace could not be opened to them in time of war; on which precise principle these instructions were founded. And, as the reversal could be justified by no other authority than the law of nations, by which they were guided, the law of nations, according to that joint tribunal, condemns the principle here combated. Whether the British Commissioners concurred in these reversals, does not appear; but whether they did or did not, the decision was equally binding, and affords a precedent which could not be disrespected by a like succeeding tribunal, and ought not to be without great weight with both nations, in like questions recurring between them.

On these grounds the United States may justly regard the British captures and condemnations of neutral trade, with colonies of the enemies of Great Britain, as violations of right; and if reason, consistency, or that sound policy which cannot be at variance with either, be allowed the weight which they ought to have, the British Government will feel sufficient motives to repair the wrongs done in such cases by its cruisers and

It has been already noted, that the British regulation of 1798 admits a direct trade, in time of war, between a belligerent colony and a neutral country carrying on the trade; and admits, consequently, the legality of the importation by the Aurora, from the Havana to Charleston. Nor has it ever been pretended that a neutral nation has not a right to re-export to any belligerent country whatever foreign productions, not contraband of war, which may have been duly in

Relations with Great Britain.

tant proceedings of Admiralty Courts still more ruinous and intolerable.

3. From the decision in the British High Court of Admiralty itself, given in the case of the Polly, Lasky, master, by a judge deservedly celebrated for his profound judgment, which cannot be suspected of leaning towards doctrines unjust or injurious to the rights of his own country. On that occasion he expressly declares: "It is not my business to say what is universally the test of a bona fide importation. It is argued that it would be sufficient that the duties should be paid, and that the cargo should be landed. If these criteria are not to be resorted to, I should be at a loss to know what should be the test; and I am strongly disposed to hold that it would be sufficient that the goods should be landed and the duties paid."-2 Robinson's Reports, p. 368-9. The President has thought it proper that you should be furnished with such a view of the sub

ject as is here sketched, that you may make the use of it best suited to the occasion. If the trial of the Aurora should not be over, it is questionable whether the Government will interfere with its courts. Should the trial be over, and the sentence of the Vice Admiralty Court at St. John's have been confirmed, you are to lose no time in presenting to the British Government a representation corresponding with the scope of these observations; and in urging that redress in the case which is equally due to private justice, to the reasonable expectations of the United States, and to that confidence and harmony which ought to be cherished between the two nations.

The effect of the doctrine involved in the sentence of the court in Newfoundland on our carrying trade will at once be seen by you. The average amount of our re-exportations for three years, ending 30th September, 1803, has been thirty-two million three thousand nine hundred and twenty-one dollars. Besides the mercantile and navigation profits, the average revenue from drawbacks on goods re-exported for three years, ending the thirty-first December, 1803, is one hundred and eighty-four thousand two hundred and seventy-one dollars, to which is to be added an uncertain but considerable sum, consisting of duties paid on articles re-exported, after having lost, through neglect or lapse of time, the privilege of drawback. A very considerable portion of this branch of trade, with all its advantages, will be cut off if the formalities heretofore respected are not to protect our re-exportations. Indeed, it is difficult to see the extent to which the apprehended innovation may be carried in theory, or to estimate the mischief which it may produce in practice. If Great Britain, disregarding the precepts of justice, suffers herself to calculate the interest she has in spoliating or abridging our commerce by the value of it to the United States, she ought certainly not to forget that the United States must, in that case, calculate by the same standard the measures which the stake will afford for counteracting her unjust and unfriendly policy. I have the honor to be, &c. JAMES MADISON.

Mr. Monroe to Mr. Madison. LONDON, August 16, 1805. SIR: I enclose you a copy of my letters to Lord Mulgrave, relative to the late seizures of our ves sels by His Majesty's cruisers in the Channel and North Sea, and of his replies. I had yesterday an interview with him on the subject, in which he gave me a report from each of the King's law officers in the Admiralty respecting the late decisions, and promised me another interview on that and the other topics depending between our Governments, as soon as I should desire it, after hav ing perused the reports. By my note to him of this date, you will find that I consider these documents unsatisfactory on the great question, and have asked another interview. It appears, however, by them, that no recent order has been issued by the Government; hence it is probable that the late decisions on the point of continuity of voyage, which have carried the restraints on that commerce to a greater extent than heretofore, may have furnished to the parties interested a motive for these seizures. It is equally probable that the decision of the Court of Appeals in the case of the " Essex," as several of its members are also members of the Cabinet, may have been dictated by policy, to promote the navigation of this country at the expense of that of the United States. In the late interview with Lord Mulgrave much general conversation took place on the subject, in which he assured me, in the most explicit terms, that nothing was more remote from the views of his Government than to take an unfriendly attitude towards the United States; he assured me also, that no new orders had been issued, and that his Government was disposed to do everything in its power to arrange this and the other points to our satisfaction; by which, however, I did not understand that the principle in this case would be abandoned, though I think it probable that in other respects much accommodation may be obtained relative to that commerce. Affairs here seem to be approaching a crisis. It is said that the combined fleets, having been previously joined by the Rochefort squadron, have entered Ferrol, and that the force now there is thirty-seven sail-of-the-line. Sir Robert Calder has joined Admiral Cornwallis before Brest. The French fleet there consists of about twenty-six sail-of-the-line. This force, so nearly united, is a very imposing one. The menace of invasion is kept up and increased. Everything seems to indicate that an attempt will soon be made.

I have the honor to be, with great respect and regard, sir, your very obedient servant,

JAMES MONROE.

No. 1.

To Lord Mulgrave.

DOVER STREET, July 31, 1805. Mr. Monroe presents his compliments to Lord Mulgrave, and requests the honor of an interview with his Lordship on the subjects that were depending between their Governments at the time of Mr. Monroe's departure last Autumn for Spain,

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